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USCA1 Opinion
October 7, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2225
MANUEL C. PEDRO-COS,
Plaintiff, Appellee,
v.
BLAS CONTRERAS, ET AL.,
Defendants, Appellants.
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ERRATA SHEET
The opinion of this Court issued on September 30, 1992, is
amended as follows:
On the cover sheet on the first line of the caption, change
"Pedros" to "Pedro".
Page 3, line 5, change "remains" to "remain".
Page 4, footnote #2, change "is" to "are".
Page 4, line 4, change "affilation" to "affiliation".
Page 4, line 15, add a comma after "(en banc)".
Page 6, line 2, add a ")" immediately following "(1st Cir.
1956)".
PageSeptember 30, 1992
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No. 91-2225
MANUEL C. PEDROS-COS,
Plaintiff, Appellee,
v.
BLAS CONTRERAS, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Anabelle Rodriguez, Solicitor General, Reina Colon De
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Rodriguez, Deputy Solicitor General, and Carlos Lugo Fiol,
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Assistant Solicitor General, Department of Justice, on brief for
appellants.
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Per Curiam. Plaintiff, Manuel C. Pedro Cos, filed suit,
__________
in 1986, pursuant to, inter alia, 42 U.S.C. 1983, claiming
that he was transferred because of his political affiliation
in violation of his constitutional rights.
Defendants/appellants, officials of the General Services
Administration (GSA) of the Commonwealth of Puerto Rico,
where Pedro Cos is employed, appeal the denial of summary
judgment on their claim of qualified immunity.1 Mitchell v.
________
Forsyth, 472 U.S. 511, 530 (1985) (denial of qualified
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immunity is immediately appealable). We vacate and remand
with directions to grant summary judgment to the defendants
on the issue of qualified immunity from damages liability.
The relevant facts are these:
1) Pedro Cos is a member of the New Progressive Party
(NPP), whose candidate lost the governorship of Puerto Rico
in the 1984 election.
2) The defendants are members of the Popular
Democratic Party (PDP), whose candidate won the governorship
of Puerto Rico in the 1984 election.
3) Pedro Cos is a career employee of GSA for more than
20 years. His classification (since 1980) is Accountant VI.
From 1984 until August 1, 1986, he was Chief of Industrial
Accounting. According to Pedro Cos, he prepared the monthly
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1. Plaintiff failed to file any appellee brief.
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financial statements, paid all suppliers, and supervised 25
employees.
4) On August 1, 1986, Pedro Cos was transferred to a
new position - Special Assistant to the Finance Director.
His classification and salary remain as Accountant VI.
5) According to Pedro Cos, he now supervises no one.
He no longer has a secretary. Almost all of his functions
were taken away. He now is responsible for menial clerical
tasks. He reconciles the paymaster's cash with the monthly
bank statements. He says this takes one hour a month. He is
also responsible for a Social Security report which, he says,
takes one hour every three months.
6) Pedro Cos has a bachelor's degree in business
administration and a master's degree in accounting. He also
has taken four seminars in the field of accounting. Pedro
Cos says that his present functions are not commensurate with
his academic preparation and his work experience. He says
that he does not perform any of the duties contained in the
job description of Accountant VI.
7) Pedro Cos alleges that he was replaced in his prior
position with a PDP member with less academic preparation and
work experience and a classification of Accountant IV.
8) Pedro Cos contends that defendants were aware of
his political affiliation. He claims that these actions
occurred because of his political affiliation and that
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defendants are constantly harrassing and humiliating him,2
all with the intent to force him to resign.
Appellants deny that Pedro Cos' transfer occurred
because of his political affiliation, but rather pursuant to
legitimate needs of GSA and in the course of a bona fide
reorganization, encompassing the transfer of other employees
as well. They also claim that, in any event, they are
shielded from liability for civil damages because, at the
time of their actions (August 1986), the constitutional
protection against a politically motivated demotion or
transfer short of dismissal was not clearly established.
Appellants are correct in their assessment of the status
of the law as of 1986. We have repeatedly stated that, prior
to our decision in Agosto-De-Feliciano v. Aponte-Roque, 889
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F.2d 1209 (1st Cir. 1989) (en banc), and the Court's decision
in Rutan v. Republican Party of Illinois, 110 S. Ct. (1990),
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the law was not so well settled that reasonable people should
have been aware that such constitutional protection existed.
Valiente v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992); Aviles-
________ ______ _______
Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992); Castro-
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Aponte v. Ligia-Rubero, 953 F.2d 1429, 1430 (1st Cir. 1992);
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Balaguer-Santiago v. Torres-Gaztambide, 932 F.2d 1015, 1016
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(1st Cir. 1991); Roque-Rodriguez v. Lema Moya, 926 F.2d 103,
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2. This alleged constant harassment and humiliation are not
further described.
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108 (1st Cir. 1991); Nunez-Soto v. Alvarado, 918 F.2d 1029,
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1030 (1st Cir. 1990).
The district court declined to grant summary judgment on
the ground of qualified immunity, however. It concluded that
the contention that Pedro Cos' present position was almost
entirely devoid of duties and responsibilities coupled with
his allegation that the defendants' purpose was to secure his
resignation raised a material question of fact regarding his
actual duties and whether his transfer constituted a
constructive discharge. The court pointed out that we had
recognized the constitutional dimension of a claim of
constructive discharge in Alicea Rosado v. Garcia Santiago,
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562 F.2d 114 (1st Cir. 1977), long before the defendants'
actions in this case, thus precluding them from claiming
qualified immunity.
We respectfully disagree with the district court. Even
assuming that Pedro Cos' description of his present job is
accurate, we conclude that his claim of a constructive
discharge fails as a matter of law. As explained in Alicea
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Rosado,
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[a] "constructive discharge" has been
defined as "an onerous transfer, having
the purpose and effect of forcing the
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transferred employee to quit the
employment."
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Id. at 119 (quoting Newspaper Guild of Boston v. Boston
___ ___________________________ ______
Herald-Traveler Corp., 238 F.2d 471, 472 (1st Cir. 1956))
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(emphasis added).
[T]he "burden imposed upon the employee
must cause, and be intended to cause, a
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change in his working conditions so
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difficult or unpleasant as to force him
_________________________________________
to resign."
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Id. (quoting Crystal Princeton Refining Co., 222 N.L.R.B.
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1068, 1069 (1976)) (emphasis added).
Pedro Cos is still employed and drawing his full salary
from GSA. He has, in fact, not resigned or left his
employment. No discharge, constructive or otherwise, has
occurred. As we stated in Alicea Rosado,
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[b]efore a "constructive discharge" may
be found, entitling the employee to quit
working altogether rather than accepting
a transfer which he thinks is violative
of his constitutional rights, the trier
of fact must be satisfied that the new
working conditions would have been so
difficult or unpleasant that a reasonable
person in the employee's shoes would have
felt compelled to resign.
Id. A claim of constructive discharge due to a demotion or
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transfer cannot succeed when a claimant, in fact, has not
left employment. Cf. Smith v. Bath Iron Works Corp., 943
___ _____ ______________________
F.2d 164, 167 (1st Cir. 1991) (because claimant did not
resign until 6 months after last episode of discrimination,
she cannot prevail under a constructive discharge theory).
Indeed, we point out that in the case of Newspaper Guild v.
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Boston Herald-Traveler Corp., 238 F.2d at 472, which was the
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source of our much quoted definition of constructive
discharge, the claim of constructive discharge was rejected
precisely because the employee had not left his employment,
but continued to work and draw his full salary on the less
desirable 1:00 a.m. shift to which he had been transferred.
The order of the district court denying the defendants'
motion for summary judgment on their claim of qualified
immunity from damages liability is vacated and we remand for
entry of summary judgment in defendants' favor on this issue.
Vacated and remanded.
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6, line 10, add a ")" immediately following "(1976)".
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Document Info
Docket Number： 91-2225
Filed Date： 10/7/1992
Precedential Status： Precedential
Modified Date： 9/21/2015